Dive Brief:
- A Buffalo staffing firm agreed to pay $550,000 to settle allegations by the U.S. Equal Employment Opportunity Commission that it rejected applicants or placed them in low-paying jobs because they were Black or female, or because of a client’s discriminatory preference, the EEOC announced Oct. 3 (EEOC v. Staffing Solutions of WNY, Inc., No. 18-00562 (W.D.N.Y. May 17, 2018)). The staffing firm also allegedly refused to find jobs for qualified applicants who were over 50, pregnant or disabled, the EEOC said.
- In one alleged instance, after a manager at a client’s company told the staffing firm he didn’t want to work with Black applicants, the firm’s owner instructed recruiters to give the manager what he wanted, according to the complaint. The firm and its clients also allegedly classified jobs by gender, referring to women as “lights” and to men as “heavies.” Women were given clerical assignments, while men were assigned to jobs such as loading and unloading goods for a trucking company, the complaint alleged. Per the lawsuit, the firm allegedly forced its office manager to quit after she complained about the discriminatory practices and was warned she would be fired if she didn’t comply.
- “The law is clear that complying with a client’s discriminatory request is illegal,” Jeffery Burstein, regional attorney for the EEOC’s New York district office, stated in a release. “Staffing companies cannot prioritize clients’ discriminatory preferences over following the law,” he added. As part of a consent decree, the firms owner must send a letter to all clients committing the company to following federal employment nondiscrimination laws, the EEOC said.
Dive Insight:
“The customer is not always right, especially so when making a discriminatory request or preference,” Kimberly Cruz, EEOC assistant regional attorney in New York, told HR Dive in an email. “Employment decisions based on prejudices or stereotypes about an employee’s sex, race, national origin, age, religion or other protected characteristic are unlawful, and this includes acquiescing to a client’s discriminatory requests or preferences,” she added.
When these prohibitions conflict with an employer’s desire to cater to its customers, the law requires that staffing companies refuse the client’s discriminatory request, Cruz said. For example, a staffing firm would be violating Title VII if, as the EEOC alleged in the Buffalo lawsuit, its owner forbade a recruiter from hiring a Black applicant for a particular shift because the manager of the shift didn’t want Black workers.
Staffing firms are also prohibited from discriminating directly against their own employees, an EEOC guidance states. In June, the EEOC sued a manufacturing staffing company for allegedly refusing to refer a naturalized citizen for employment with a government contractor because she was born in Germany and not the U.S.
Similarly, neither staffing firms nor direct employers may base a hiring decision or job assignment on assumptions about a protected class, another EEOC guidance explains. This would include refusing to hire women for sales positions, or men for cashier, clerical or other office positions, because of gender-based assumptions, as a recent EEOC lawsuit alleged. Per the suit, a Missouri car dealership allegedly refused to hire women for sales roles because they “do not get the respect necessary to be successful at car sales,” they sit at their desks, or they quit because the job isn’t clerical.
In another example, a Texas-based construction firm recently agreed to pay $50,000 to settle an EEOC lawsuit alleging, among other things, that managers told a supervisor “not to hire more Black people because they are lazy.”
Companies faced with discriminatory requests from clients or customers may have to have difficult discussions with them, “but taking the path of least resistance and agreeing to these requests can result in expensive and damaging legal claims,” Parker Poe partner Jonathan M. Crotty warned in an Oct. 7 blog post.
